APPEAL NO.CA/J/161/2012
President, Court of Appeal, Justice Zainab Bulkachuwa
“17. IF THE party opposed
to the party beginning calls or reads
evidence, the party beginning shall
be at liberty to reply severally on
the whole case, or he may, by leave
of the Court, call fresh evidence in
reply to the evidence given on the
other side, on points material to the
determination of the issues, or ay of
them, but not on collateral matters.”
The trial Judge asked each party to
produce written address at the close
of evidence of the defendants. In
usual practice such address is done
orally before the Court. The terms
used in the Rules of Court are “sum
up”, “reply” but in practice these
are called “address”. The procedure
whereby the parties to a case at
the conclusion of evidence are to
address the Court on the evidence
before the Court, enumerating the
issues canvassed and adverting to
the law governing the issues has
taken such a root in our superior
Courts that denial of it cannot
be regarded as mere procedural
irregularity. Just as a party is not
compelled to give evidence to prove
his case so is a party not compellable
to address the Court where he has
the right so to do. But when the right
to address the Court exists, a party
must not be denied that right and
denial of the right may render the
proceeding a nullity if miscarriage
of justice is occasioned. Perhaps, for
the convenience of the Court, such
addresses may be in writing as the
rules of Court are not clear about
this, but it must be in accordance
with rules whereby a party is not
denied by implication of the right to
address. The addresses, I hold, are
not directed at the Court alone. The
purport of the address by a party is
to let the Court and his adversary
know what his summing up is on
the facts and the law as revealed
by the evidence before the Court.
Therefore, it is a wrong supposition
for a trial Court to believe that an
address at the close of a party’s
case is meant for it alone; the other
side, throughout the trial of a case
must not be blinded from what
his adversary relies upon. In this
case, the defendants, who were to
start addressing the Court, filed an
address. The address is undated and
not served on the other side i.e. the
plaintiff’. This is unjust. The plaintiff
was being blinded against the
address of the defendants. The Court
of Appeal adverted only to failure of
plaintiff to submit a written address
and held that the plaintiff was to blame
for this failure. Had the Court adverted
to the principle that the address was not
meant for the Court alone but also for
the other side, it would have discovered
fundamental error in the trial Judge’s
approach. No date was given for the
addresses to be submitted, no order
was made for service of defendants’
address on the plaintiff and when the
plaintiff was to file his reply address.
The importance of addresses is shown
by Section 258(1) of the Constitution of
the Federal Republic of Nigeria, 1979:
“258(1) Every Court established
under this Constitution shall deliver
it decision in writing not later than 3
months after the conclusion of evidence
and final addresses…”
The trial Judge was in error in the
manner he ordered for the written
addresses. He was wrong in deciding
the case virtually on the written address
of the defendants’ Counsel which
was not served on the plaintiff or his
Counsel to afford him the opportunity
of writing his own address. Is it not after
final addresses on the evidence that
time starts to run to deliver judgment?
The Court of Appeal fell into the same
pitfall and erred further by speculating
in holding that:
“Without the addresses by both
parties the decision arrived at by the
learned trial Judge would not have
been different.”
The hearing of a case, under our
system, is that every party must
not only be heard but also must be
afforded the opportunity of being
heard. Without the opportunity of
one side being heard, there can be
no facts for the Court to fully asses as
in Mogaji vs. Odofin (1978) 4 SC 91.
Addresses form part of the case and
failure to hear the address of one party,
however overwhelming the evidence
seems to be on one side, vitiates the
trial because in many cases, it is after
the addresses that one finds the law
on the issues fought not in favour of
the evidence adduced. Order 26 rule
17 is mandatory and as the appellant
was not aware of what was contained
in the defendants’ address and the
judgment of the trial Court was based
almost solely on the address, there is
a miscarriage of justice which was not
mitigated by the approach of Court of
Appeal to the issue.
By holding that the decision could
not have been different if all addresses
were before the trial Court, the Court
of Appeal was attempting to read the
mind of the trial Judge. He heard the
evidence and saw the witnesses, the
addresses might have thrown a new
light on his view on the evidence but
also the addresses. A party entitled
to address the Court may waive that
right but it must be shown that he
has so waived his right. Time would
have been saved if the conventional
practice was adhered to whereby
oral addresses are made. The most
important requirement is that the other
party must know what the address
is all about. In a writing address, the
Court must make sure that the parties
exchanged addresses. It is by making
clear order as to the time of filing,
service on the other side and so forth,
that the Court would be certain that
both parties would have opportunity
of addressing. Perhaps it is better to
adhere to tried and tested practice of
oral addresses.”
For a Court to order written
addresses, provision for doing so
should be found in the rules of the
Court. Provisions exist in Order 18 rule
3-8 of the Court of Appeal Rules, 2011
for brief writing. An appellant’s brief is
“…a succinct statement of his argument
in the appeal.” See Order 18 rule 2 of
the Court of Appeal Rules, 2011. The
respondent’s brief under Order 18 rule
4(2) is to “answer all material points of
substance contained in the Appellant’s
brief and contain all points raised
therein which the respondent wishes
to concede as well as reasons why the
appeal ought to be dismissed…”
Section 294(1) of the Constitution
specifically provides that the delivery
of the Court’s decision in writing
should be “not later than ninety days
after the conclusion of evidence and
final addresses…” etc, whereas there is
no such provision under Section 294(2)-
(4) of the Constitution which reads as
“(2) Each Justice of the Supreme
Court or of the Court of Appeal shall
express and deliver his opinion in
writing, or may state in writing that he
adopts the opinion of any other justice
who delivers a written opinion.
Provided that it shall not be necessary
for all the Justices who heard a cause or
matter to be present when judgment
is to be delivered and the opinion of a
Justice may be pronounced or read by
any other Justice whether or not he was
at the hearing.
(3) A decision of a Court
consisting of more than one Judge shall
be determined by the opinion of the
majority of its members.
(4) For the purpose of delivering
its decision under this section, the
Supreme Court; or the Court of Appeal
shall be deemed to be duly constituted
if at least one member of that Court sit
for that purpose.”
Order 18 rules 9(4) and 10 of the
Court of Appeal Rules reads as follows:
“9(4) When an appeal is called and
the parties have been duly served with
the notice of hearing, but if any party
or any legal practitioner appearing for
him does not appear to present oral
argument even though briefs have
been filed by all the parties concerned
in the appeal, the appeal will be treated
as having been duly argued.
10. Where an appellant fails to
file his brief within the time provided
for in Rule 2 of this Order, or within
the time as extended by the court, the
respondent may apply to the Court for
the appeal to be dismissed for want
of prosecution. If the respondent fails
to file his brief, he will not be heard in
oral argument. Where an appellant
fails to file a reply brief within the
time specified in Rule 5, he shall be
deemed to have conceded all the
new points or issues arising from the
respondent’s brief.”
The express mention of the Rules
maker is for oral argument should
be restricted to the point where it
becomes necessary to “emphasize
and clarify the written argument
appearing in the briefs already filed
in Court”. See Order 18 rule 9(1) of
the Rules (supra). Thus if there is
nothing to “emphasize and clarify in
the argument already filed in Court”
and this is the prerogative of the
Court, I am of the humble opinion
that oral argument ought not to be
allowed except in circumstances
one had not envisaged, example
correction of typographical errors in
the processes.
My position is buttressed by
the provisions of Order 18 rule
9(4) of the Rules wherein “when
an appeal is called and the parties
have been duly served with the
notice of hearing, but if any party
or any legal practitioner appearing
for him does not appear to present
oral argument even though briefs
have been filed by all the parties
concerned in the appeal, the appeal
will be treated as having been duly
argued.” Therefore, with or without
the appearance of the parties or their
legal representatives, upon proof
that they have been served hearing
notice to appear on a fixed day, it is
within their discretion to come or
not; the appeal would have been
deemed argued. The practice for
Counsel or the parties to appear and
adopt their respective briefs on the
day fixed for hearing the appeal is
foreign to the practice and procedure
prescribed in the Court of Appeal
Rules, 2011. Order 1 rule 3 of the
Rules provides as follows:
“3. The practice and
procedure of the Court shall
be as prescribed by these Rules
notwithstanding any written law or
rule of practice obtaining in any of
the State…”
Order 18 rule 1 of the Rules (supra)
reads as follows:
“1. This Order shall apply to
all appeals coming from any Court
or tribunal from which an appeal lies
to this Court…”
It is not within the province of
the Courts or learned Counsel to
introduce into the Rules practices
or procedures never contemplated
by the Rules maker. The Court of
Appeal Rules, 2011 were made by Isa
Ayo Salami (OFR), Hon. President
of the Court of Appeal (as he then
was) pursuant to Section 248 of the
Constitution of the Federal Republic
of Nigeria, 1999 as altered.
In Musa vs. Auta (1982) 7 SC 118
sitting as a Constitutional Court, the
Supreme Court held as follows:
“Fatayi-Williams, CJN: This is an
application for an order dismissing
this appeal for want of prosecution,
the appellant having failed to file his
brief of argument within the time
specified in rule 3(1) of Order 9 of
the Rules of this Court. There is no
doubt that the appellant has failed to
comply with this particular rule

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